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Martin Garbus

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Dangerous, Not Foolish: The Citizens United Case

Posted: 06/26/2012 6:22 pm

On Monday the Supreme Court reaffirmed the Citizens United Case. When I look at the Supreme Court's words and thoughts in the Citizens United Case, I think of other statements from the past, made by prominent figures, regarding controversial issues.

  • "Everything that can be invented has been invented." Charles H. Duell (United States Patent and Trademark Office), 1899;

  • "Heavier-than-air flying machines are impossible." Lord Kelvin (Royal Society of London), 1895; "Airplanes are interesting toys, but of no military value." Marshal Ferdinand Foch, 1911;

  • "I think there is a world market for maybe five computers." Thomas J. Watson (President of IBM), 1943;


"We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;" ... "the appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in this country."
-- Justice Anthony Kennedy in the United States Supreme Court (Citizens United v. Federal Election Commission), 2010

The first paragraph of Citizens United is just arrogant, self-interested foolishness. The second is that plus something far more dangerous.

The nine Supreme Court Justices are all wordsmiths. The five Court conservative majority did not specifically say that great amounts of money do not influence elections, and they did not specifically say that great amounts of monies cannot buy elections, and they did not specifically say that money cannot buy government officials.

To say that, in those words, would be as foolish as those quoted from history in the beginning of this piece.

So it was said by the Justices in other ways.

To plainly say what they really meant would make it clear to all of us exactly what was going to happen to this country. This could, or might, lead to a very angry if not violent reaction.

Buried in 81 pages of legal citations in Citizens United we see avoidance. We see what appears to be a deliberate attempt to confuse the fact that the Court does not say so much foolish as dangerous words.

To put clearly what the Court unclearly states, that this democracy cannot stop itself from becoming a plutocracy, a country run by and for the benefit of the wealthy, is very troublesome.

The "original intent" Justices, Clarence Thomas, Antonin Scalia and Samuel Alito, joining with Justices Roberts and Kennedy in the Citizens United majority, cannot find the words in the Constitution that say a plutocracy is what the Founders wanted. It's not so, and never has been, and so they find a different way to say that it's legal.

The 81 page decision of the Citizens United majority is so carefully articulated that it obscures who the five Justices are, what they really want, and their acceptance, perhaps desire, for a country that bears very little resemblance to the democracy we thought we had.

Martin Garbus, a First Amendment lawyer who has taught at Columbia University, is the author of a number of books on the First Amendment and the Supreme Court.

 
 
 
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06:17 AM on 06/28/2012
As articulated by Justice Kennedy and cited in the above article ""We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption;" ... "the appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in this country."
-- Justice Anthony Kennedy in the United States Supreme Court (Citizens United v. Federal Election Commission), 2010" is one of the basest and most foul of lies ever perpetuated on the American public.

It is plain simple language meant to do nothing but deceive and in it's deception destroy any vestiage of democracy. The RobertsCourt did what the British(War of Independence) NazisJapanese)WWII, the Soviets( ColdWar) or any number of enemies failed to do in the past.

The utter and complete destruction of a society predicated on the notion that all men are created free and equal and pushed our society over the precipice towards CorporateFacism.

CitizensUnited cannot be permitted to stand and the RobertsGang in this specific instance must be held accountable. The SupremeCourt regardless of past decisions in our history has always been held to a higher standard. This is no longer true.

Our government, state and federal, relies on the "good faith" of it's citizenry, that "faith" was destroyed by the RobertsGang.

Roberts, Alito, Scalia, Thomas and Kennedy should be held accountable by this govewrnment and the people and scrutinized by the media and courts across the land, otherwise America is lost.
03:59 PM on 06/27/2012
Let's rev up an amendment movement to specifically repeal the Citizens ruling and establish the actual democratic principles intended by the Founding Fathers.
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07:06 AM on 07/01/2012
Perhaps I'm too vengeful, but I would really only be happy if these five criminals were impeached. Then, at least, we might have a precedent for what activity on the court is unacceptable going forward.
06:37 PM on 07/10/2012
Indeed, why couldn't it have been Scalia hunting with Cheney. He could sit there on the court with a mask like that guy in Boardwalk Empire.
01:13 PM on 06/27/2012
". . .he spoke of its citizens being "under siege" and states feeling "helpless before those evil effects of illegal immigration."

But of course, he makes no mention of Native Americans the the evils effects they suffered at the hands of European hordes besieging their lands.

More scandalous Scaliaisms. The man is such a bloated ego and shriveled intellect that historians are really go to have some fun with this. I only hope they don't wait until he's dead to get started. It would do the man good to see how his moral and intellectual degeneracy will bring shame upon the heads of his descedants. I off this new colloquialismas the ultimate insult: "Your name is Scalia!"
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Nemo Oudeheis
Whoever is not busy being born is busy dying.
12:52 PM on 06/27/2012
Can you imagine what the SCOTUS would be like if it were ruled by a "Gang of Seven"?

The mind reels.

And this is just what will happen if Romney is elected. Enter the Man on a White Horse.
botazefa
Sounds like Bodhisattva
12:35 PM on 06/27/2012
How long will it be before a Corporation files a lawsuit demanding the right to vote in elections? If Corporations are People, and money and voting are speech, it's only a matter of time.

Obama 2012!
03:17 PM on 06/27/2012
Not just vote, but run for office. We're privatizing everything else; what's left for corporate interests to cannibalize next but the government itself?
botazefa
Sounds like Bodhisattva
03:40 PM on 06/27/2012
Just when I thought it couldn't get scarier. You're right, of course. How long before my local congressional primaries include Candidate Haliburton and Candidate Exxon!
12:17 PM on 06/27/2012
That is why our founders wanted a small federal government. Leaving most everything to the states. The Bigger Washington gets the more corrupt. The more money Washington has the more lobbyist and special interest are in line with their hands out. Citizens United is about free speech. It allows private groups to speak, for or against political issues or politicians. Super PACs are actually less corrupt as they DO NOT give money directly to any candidate. Super PACs spend their own money for ads. They don't have to be of any political affiliation.
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01:19 PM on 06/27/2012
Is the phrase "small federal government" (or anything close to a synonym for that phrase) to be found anywhere in the Constitution? The Constitution's purpose was to create a stronger, more effective federal authority than the loose, ineffective one existing under the Articles of Confederation. The reason much was left to the states was--at least in large part-- due to the need to get a supermajority of the states to ratify it-- when there were huge differences of interests and political issues among the 13 states. The current levels of private wealth (and power) held by even individuals, let alone that held by corporations, would have been unimaginable to our founding fathers. The bigger corporations get, the less they give a damn about human beings, Americans, justice or basic honesty, but the more power they have to run the government as they please and with far less accountability than a political party, let alone an individual officeholder or government agency. Think about it...
itolduso
lateral thinker
01:57 PM on 06/27/2012
Citizens United strikes at the very heart of a Constitution whose express purpose is to defend the unalienable rights of the INDIVIDUAL (person). A 'corporation' is NOT a person...it is a legal entity that does not even require citizenship of it's owners or board members...Bestowing the 'right of Constitutionally protected free speech' onto a 'corporate entity' elevates that entity above individual citizens...by 'equating' money with speech, those without are rendered mute.
12:04 PM on 06/27/2012
The depressing reality is that the public will ultimately do nothing to change this indefensible outrage that the Roberts Court has foisted on us. The supreme difficulty of getting the state and federal super-majorities needed to pass an amendment overturning the concept of corporate free speech will never muster suffcient support. First, there is not broad enough public support and second, those who feed at the trough of political patronage are unlikely to vote to end it.

What is really needed is a change to public financing of elections, eliminating all outside influence and opening the field to more candidates. But that too is unlikely. There are a variety of reasons for why we are where we are (detailed in the book America Adrift) but our yearning for simple answers will likely keep us from addressing those reason as we slide deeper and deeper into plutocracy.
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07:47 PM on 06/27/2012
I agree. The difficulty of passing an amendment to the Constitution makes this approach ludicrous under present political conditions. Nor is it a good strategy for organizing people around this basic issue-- too much influence by the corporations and the wealthy. It does not empower the grassroots and it looks to the top liberal political leaders like the organizations spearheading this are taking people for a ride to nowhere. How is that a help in the short or long run?
12:05 AM on 06/28/2012
Astutely put, Rik. Sad but true.
12:04 PM on 06/27/2012
... "the appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in this country."

Many already have, including myself. Utterly and completely.
itolduso
lateral thinker
02:12 PM on 06/27/2012
The 'country' will be o.k....we've been lazy, left incompetent caretakers in charge for too long - the fox is in the hen house, pigs loose within the halls...and the mortgage is overdue. But our lands are fertile, water's abundant, plenty of lumber and coal. The 'foundation' is sound...the 'blueprints' are intact, throughout the lands are workers who believe in it's promise and are devoted to making it work.... we will soon awaken and begin the restoration.
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RegionalCitizen
04:45 PM on 06/27/2012
You're too optimistic. Our foundation is not sound and our resources are disappearing into consumption, overuse, and pollution -- the latter still a huge concern when it comes to use of coal. The experts already are predicting that one of the coming global battlefronts will be water -- and we can see many of the signs everywhere now. The governmental structure that has been this country's strength is rapidly collapsing around us and I fear there are not enough citizens willing to peek out of their cocoons long enough to step up and reverse the trend. I foresee a country continuing to lapse into a dreary "used to be" status amid political and corporate bickering while being overshadowed in all aspects by China and several other rapidly emerging countries. I see no evidence of an awakening -- just the opposite, in fact -- or the will to begin a restoration.
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KarmaPatrol
Riverboat Gambler, satellite whisperer. Independe
11:48 AM on 06/27/2012
Citizens ununited. Corporations can now fight my share of the next war, drug war, electeonic hacking, etc.. "Maverick to Goose....I'm cashing out, Goose, ... bailing out of corporate America now...." (unless Hooters has a special in their Buffalo Chicken sandwich, of course)
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11:20 AM on 06/27/2012
The author is right, we need more government regulations of political groups speech content, not less.

Truly free societies abdicate the free speech rights of interest groups to the government which is the regulator of speech to ensure an efficient, fair society
Joel Smithis
Small business owner
11:14 AM on 06/27/2012
Here is my constitutional tip for our conservative justices:

The Founding Fathers did not intend for the corporations to shape the government!

Got it?
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11:28 AM on 06/27/2012
Here is my tip for you. The left gets their panties in a wad over this ruling but does not address the specifics of the case.

The founding fathers did not intend for the government to control political speech or ban books.

When citizens united was argued before the supreme court the FEC (who was regulating the speech of a conservative interest group, which was incorporated) argued they could ban books if published to close to an election. Do you really support the government banning books. Really?

This group that the FEC was silencing was not some big corporation, just some people who did not like Hillary Clinton and had the audacity to air a "documentary" about her too close to an election. Oh my, something negative said about a politician to close to an election. Are you for protecting public officials from political speech, Really?

"During the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union"

Got it bud?
Government was regulating polical speech and that is exactly what the first amendment protect.

Unless you are a hippie and think the most important thing about the first amendment is protecting your adolescent urge to swear in public.
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Randy M Still
read Still Life on amazon.com
12:27 PM on 06/27/2012
Are you really as happy with the decision as you sound? Really?? The main problem with unlimited spending - although not the only one - is that they somehow have made it anonymous. The public can not retaliate against money spent to influence an issue one way or another if it doesn't know from whence the money came. If you desire freedom of speech, or money, then you should be prepared for the feed-back that may occur if/when others disagree with you. The public and corporations will always be at odds - as long as we have to work for them and buy their products. Just made that way.
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dweav
12:36 PM on 06/27/2012
Apparently the natural gas has affected your thinking. The founding fathers didn't mean for confrontations to be considered people too my friend. Try yelling fire in a crowded theater. Yes I am a "hippie" who cares about truth, compassion, and the golden rule.
jhNY
Mercy.
11:13 AM on 06/27/2012
The radical conservative wing of the Court has an activist, pro-business interest agenda, which means in nearly all practical matters, it does what it can to facilitate advantage to the GOP. Simple, really.

In other words, watch what happens, not what they say. The arguments are but afterthoughts to the furtherance of the agenda.
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Espantapajaros
Happy Flowers and Puppies and Stuff
11:09 AM on 06/27/2012
I note you criticize Kennedy's conclusion without offering any evidence to the contrary. It seems the entire premise of there being ipso facto corruption or the appearance thereof by allowing unions and corporations, like any other association, to make political expression is somewhere between a nudge-and-a-wink and "come ooooooon!".

Given the staggeringly high incumbency rates cemented in our electoral process by campaign finance reform over the past four decades, where's the smoking gun?
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TheBaffler
a long the riverrun
08:07 PM on 06/27/2012
'...campaign finance reform over the past four decades...'

*snicker*
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Robert Terry
11:03 AM on 06/27/2012
What is really funny here on this is that if the far left nuts were raising more money in their super packs than the rep. there would not be a word about this on HP. Got to keep their agenda going.
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Polly
11:38 AM on 06/27/2012
NOT TRUE!!!
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Anybodyseenthepopos
אני כלום בלעדיהם
11:43 AM on 06/27/2012
That's simply untrue. We've been deriding this decision since it was first made; and haven't stopped for a moment.
Joel Smithis
Small business owner
10:59 AM on 06/27/2012
Here is the gravest fallacy of libertarianism;

They think money is freedom, whereas the truth is the opposite, money is control!
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Espantapajaros
Happy Flowers and Puppies and Stuff
11:14 AM on 06/27/2012
Yours is perhaps the gravest fallacy of the statist's interpretation of libertarianism. You think libertarians think money is freedom. Libertarians think money is a tool; choice is freedom.
botazefa
Sounds like Bodhisattva
12:32 PM on 06/27/2012
Freedom is freedom. All the Ayn Rand statist metaphors notwithstanding, it is dangerous when one redefines terms to meet ones world view. Libertarianism simply does not exist. It is a dreamer's political system and is only marginally popular. The reason it is marginalized is because it is morally and philosophically bankrupt.

I don't think libertarians think money is freedom. I think libertarians mistakenly believe they are islands to themselves.
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Bethab
01:08 PM on 06/27/2012
And the more money you have, the more choice you get.
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11:33 AM on 06/27/2012
Right, and government laws that allow the banning of book is freedom... right... did you ever read 1984?

"During the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued .... the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union"

The left blog sites and HuffPost forgets to mention book banning is supported by these government controls of speech.